Journal of Criminal Law and Criminology
Volume 72
Issue 4 Winter
Article 8
Winter 1981
Fifth Amendment--The Right to a no Adverse
Inference Jury Instruction
Sharon R. Gromer
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Recommended Citation
Sharon R. Gromer, Fifth Amendment--The Right to a no Adverse Inference Jury Instruction, 72 J. Crim. L. & Criminology 1307
(1981)
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0091-4169/81/7204-1307
THEJOURNALOF CRIMINAL LAW &CRIMINOLOGY
Copyright 0 1981 by Northwestern University School ofLaw
Vol. 72, No. 4
ftntrdin USA.
FIFTH AMENDMENT-THE RIGHT TO A
NO "ADVERSE INFERENCE" JURY
INSTRUCTION
Carter v. Kentucky, 101 S. Ct. 1112 (1981).
I.
INTRODUCTION
Kentucky,1
In Carterv.
the Supreme Court held that a criminal defendant remaining silent at trial has a right to a jury instruction that his
silence is not evidence of his guilt. Invoking his fifth amendment right
against compulsory self-incrimination, Carter elected not to take the
stand at his state criminal trial. 2 Carter requested a jury instruction
that "[t]he defendant is not compelled to testify and the fact that he
does not cannot be used as an inference of guilt and should not
prejudice him in any way."'3 The trial judge refused Carter's request, on
the authority of the applicable Kentucky statute. 4 The Supreme Court
held that the trial court's refusal to issue this no "adverse inference"
instruction was reversible error. The Court decided that, upon request,
a defendant in a state criminal trial has a right under the fifth amendment5 to a jury instruction on the meaning of the privilege against compulsory self-incrimination. 6 In so holding, the Court answered a
7
constitutional question which it twice anticipated and reserved.
II.
RELEVANT HISTORY OF THE FIFTH AMENDMENT
The fifth amendment guarantees that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."8 This
safeguard of individual liberty was born of the colonists' reaction to the
1 101 S. Ct. 1112 (1981).
Id at 1115.
3 Id at 1113.
2
4 Ky. REv. STAT. § 421.225(1) (1979): "In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so
shall not be commented upon or create any presumption against him." Id
5 The fifth amendment to the United States Constitution provides in part that: "No
person . . . shall be compelled in any criminal case to be a witness against himself .
U.S. CONsT. amend. V.
6 101 S. Ct. at 1119.
7 Id at 1116; Lakeside v. Oregon, 435 U.S. 333, 337 (1978); Griffin v. California, 380
U.S. 609, 615 n.6 (1965).
8 U.S. CONsT. amend V.
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inquisitorial practices of the English Star Chamber and High Commission. 9 The amendment reflects "many of our fundamental values and
most noble aspirations,"' 10 our "recognition that the American system of
criminal prosecution is accusatorial, not inquisitorial,"'" and our "sense
of fair play which dictates a fair state-individual balance by requiring
the government. . .in its contest with the individual to shoulder the en'12
tire load."
When the fifth amendment was first incorporated into the Bill of
Rights, the common law did not permit a defendant to testify on his
own behalf. 13 In the eighteenth and nineteenth centuries, an accused
relied on the law's presumption of innocence, and left it to the government to establish his guilt. 14 Since a defendant was not permitted to
testify, the jury did not infer his guilt from his failure to speak out in his
own defense.' 5
In 1878, Congressman Frye of Maine introduced a bill proposing a
new rule of evidence, making persons charged with crimes competent
witnesses in federal courts.' 6 The bill was introduced for the benefit of
defendants desiring to explain incriminating circumstances. 17 The
drafters of the bill were apparently sensitive to the dilemma that its enactment would present to defendants electing not to testify. Such a law,
by giving a defendant the opportunity to testify, would make possible
for the first time speculation on the reasons for a defendant's refusal to
testify. It would make possible the tempting inference that the defendant did not testify because he could not deny the government's incriminating evidence. If the bill would force the defendant to choose between
taking the stand, or admitting his guilt through his silence, its enactment would violate the spirit of the privilege against self-incrimination.
This perhaps explains why the second section of the first draft of the bill
provided that "nothing herein contained shall be construed as compel9 101 S. Ct. at 1118 n.14.
10 Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964).
11 Malloy v. Hogan, 378 U.S. 1, 7 (1964).
12 Murphy v. Waterfront Commission, 378 U.S. at 55.
13 Wilson v. United States, 149 U.S. 60, 65 (1893).
14 Id
15 Brief for Petitioner, Carter v. Kentucky, 101 S. Ct. 1112 (1981).
16 7 CONG. REc. 363 (1878). The bill was passed by the House of Representatives on
January 17, 1878, passed by the Senate on March 11, 1878, and approved by the President on
March 18, 1878. It was known as the Act of March 16, 1878, ch. 37, 20 Stat. 30, now 18
U.S.C. § 3481 (1976):
In trial of all persons charged with the commission of offenses against the United States
and in all proceedings in courts martial and courts of inquiry in any State, District,
Possession or Territory, the person charged shall, at his own request, be a competent
witness. His failure to make such request shall not create any presumption against him.
Id
17 149 U.S. at 65.
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JURY INSTRUCTIONS13
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ling any such person to testify; nor shall any inference of his guilt result
if he does not testify; nor shall the counsel for the prosecution comment
'
thereon in case the respondent does not testify." 18
The bill was sent to the House Committee on the Judiciary, and the
Committee proposed an amendment striking the second section of the
bill and replacing it with the phrase "and his failure to make such a
request [to testify] shall not create any presumption against him." 19
Before voting on the proposed amendment, Congressman Carlisle asked
whether the amendment would preserve the substance of section two of
the first draft. Congressman Frye announced to the House that it
would, under the provision of the bill outlawing any presumption from
a defendant's failure to testify.20 With this understanding, the amend21
ment was approved and the bill became law.
The Supreme Court construed this federal competency act on two
relevant occasions and each time, without explicitly mentioning the legislative history, conformed to the legislative intent as discussed above.
In Wison v. United States,22 decided in 1893, the Supreme Court held
that the "no presumption" clause of the act demands that "comment,
especially hostile comment, upon [the defendant's failure to take the
stand] . . . must necessarily be excluded from the jury" in federal
courts. 23 Under the authority of the federal statute, the Supreme Court
ordered a new trial because the prosecution had unlawfully suggested to
the jury that it was a "circumstance against the innocence of the defendant that he did not go to the stand and testify." 24 The Court decided
that "[t]he minds of the jurors can only remain unaffected from this
18 7 CONG. Rsc. 363 (1878).
19 Id
20
id at 385.
Mr. Carlisle: I should like to inquire of the gentleman from Maine [Mr. Frye] whether
the amendment. . . prohibits the counsel of the prosecution from commenting upon the
defendant's refusal to testify.
Mr. Frye: It does, under the provision of the bill that no presumption shall arise against
the prisoner by reason of his refusal to testify.
Id
21 Act of March 16, 1878, ch. 37, 20 Stat. 30, now 18 U.S.C. § 3481 (1976). The states of
the Union passed similar competency ads, Maine being the first to do so in 1864. The Kentucky statute at issue, KY. REV. STAT. § 421.225 (1979), is the competency act for the State of
Kentucky. See Dills, The Permissibilioof Comment on the Defendant5s Failureto Tesiji in h Own
Behalf in Ciminal roceedings, 3 WASH. L. REV. 161, 164 (1928).
22 149 U.S. 60.
23 Id at 65.
24 Id at 66:
[T]he District Attorney, referring to the fact that the defendant did not ask to be a
witness, said to the jury, "I want to say to you, that if I am ever charged with crime, I
will not stop by putting witnesses on the stand to testify to my good character, but I will
go upon the stand and hold up my hand before high Heaven and testify to my innocence
of the crime. ...
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circumstance by excluding all reference to it. ' ' 25
In 1939, the Supreme Court again interpreted the "no presumption" clause of the federal competency act in Bruno v. United States.26 In
Bruno, the Court held that a federal defendant has a right to a jury
instruction that his silence is not evidence of his guilt. 27 The Court decided that Congress, by means of the "no presumption" clause, gave an
"implied direction to judges to exercise their traditional duty in guiding
the jury by indicating the considerations relevant. . .
."
to its verdict. 28
In Malloy v. Hogan,29 decided in 1964, the Supreme Court held that
the fifth amendment is applicable to the states through the fourteenth
amendment. 30 Before 1964, the Supreme Court answered fifth amendment questions by reference to the "no presumption" clause of the federal competency act. Through its decision in Malloy, however, the
Supreme Court opened the question of the effect of the fifth amendment
on state competency acts. The issue before 1964 was largely academic
since the states were not bound by the Supreme Court's interpretation of
31
the fifth amendment.
In Giftn v. Califomia,32 decided shortly after Malloy, the issue of the
affect of the fifth amendment on state competency acts first arose. The
Court examined the constitutionality of a California rule of evidence
33
which permitted adverse comment on a defendant's failure to testify.
25 Id at 65.
26 308 U.S. 287 (1939).
27 Id at 292. The instruction Bruno requested, but was refused, was that
[t]he failure of any defendant to take the witness stand and testify in his own behalf, does
not create any presumption against him; the jury is charged that it must not permit that
fact to weigh in the slightest degree against any such defendant, nor should this fact
enter into the discussions or deliberations of the jury in any manner.
Id
28 Id at 293. The Bnmo right to a no "adverse inference" jury instruction is made applicable to state defendants in Carter.
29 378 U.S. 1.
30 In so holding, the Court reversed Twining v. New Jersey, 211 U.S. 78 (1908), afd,
Adamson v. California, 332 U.S. 46 (1947). In Twining, the Supreme Court rejected the argument that the fifth amendment is applicable to the states, and so avoided reaching the issue of
whether the fifth amendment itself commands that no comment be made on a defendant's
failure-to testify. 211 U.S. 78.
31 Se Tehan v. United States ex reZ Shott, 382 U.S. 406 (1965):
(1) For more than half a century, beginning in 1908, the Court adhered to the position
that the Federal Constitution does not require the States to accord the Fifth Amendment
privilege against self-incrimination. (2) Because of this position, the Court during that
period never reached the question whether the federal guarantee against self-incrimination prohibits adverse comment upon a defendant's failure to testify at his trial.
Id at 412. In the federal judicial system, the matter was controlled by a statute. Id at 412
n.8.
32 380 U.S. 609 (1964).
33 CAL. CoNST. ART. I, § 13 (repealed 1974):
In criminal prosecutions ... .[n]o person shall be... compelled, in any criminal case,
to be a witness against himself. . . but in any criminal case, whether the defendant
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The Court acknowledged that the issue was similar to the question previously decided in Wilson, and quoted the Wilson opinion. 34 The Griftin
Court found that if the words "fifth amendment" were substituted for
the words "act" and "statute" in Wilson, the Wilson opinion would reflect the "spirit of the Self-incrimination clause."' 35 The Court held that
the California comment rule, which allowed the state to use the defend36
ant's silence as evidence against him, violated the fifth amendment.
Justice Stewart, in dissent, argued that the fifth amendment was
not applicable to Griffmn since the defendant did not testify, and therefore
was not "compelled in any criminal case to be a witness against himself."3 7 In response to this literal reading of the fifth amendment, the
testifies or not, his failure to explain or to deny by his testimony any evidence or facts in
the case against him may be commented upon by the court and by counsel, and may be
considered by the court or the jury ....
id
In Gynf, the California trial court instructed the jury that the defendant's failure to take
the stand may be taken into consideration "as tending to indicate the truth of [evidence or
facts against the accused]. .. and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable." 380
U.S. at 610.
34 Id at 613. The Grijt' Court quoted the following portion of the Wilson opinion:
[T]he act was framed with a due regard also to those who might prefer to rely upon the
presumption of innocence which the law gives to every one, and not wish to be witnesses.
It is not every one who can safely venture on the witness stand though entirely innocent
of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against
him, will often confuse and embarrass him to such a degree as to increase rather than
remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness
of those who from the causes mentioned might refuse to be a witness, particularly when
they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall
not create any presumption against him.
Id (emphasis added).
The Carter Court quoted a portion of the above passage and added that there are other
reasons unrelated to guilt or innocence for declining to testify: "fear of impeachment by prior
convictions . . . or by other damaging information not necessarily relevant to the charge
being tried, and reluctance to ificriminate others whom [defendants] either love or fear." 101
S. Ct. at 1119 n.15.
The Court pointed out that Carter may have refused to testify out of fear of being impeached by his prior record. Id If fear of impeachment was the only reason Carter refused to
testify, then an inference from silence to guilt would not be justified in his case. However, the
CarterCourt did not base its holding on the fact that the defendant possibly did not testify for
reasons unrelated to guilt. 101 S. Ct. 1112.
35 380 U.S. at 613.
36 Id
In Tehan, the Court refused to give Gifft retroactive application. The Court considered the state's reliance on the Twining doctrine, the possible effect of a retroactive application of 6rt on the administration ofjustice, and the purpose of the Gr2dfrt rule. The Court
concluded that since the states' reliance was great, the effect on the administration ofjustice
would be devastating, and the purpose of the Griffn rule was not related to the truth-finding
function of a trial, Grfti was to be given only prospective application. 382 U.S. 406.
37 380 U.S. at 623 (Stewart, J., dissenting) (quoting U.S. CONST. amend. V.).
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majority introduced the "penalty theory: ' 38 the rule permitting comment on a defendant's failure to testify is "a penalty imposed by courts
for exercising a constitutional privilege. It cuts down on the privilege by
making its assertion costly."'3 9 Without directly addressing Justice Stew-
art's argument, the Griffn Court simply held that the fifth amendment
will not permit penalties imposed for the exercise of the privilege, even if
those penalties are not sufficiently strong to compel a defendant to
testify.
In Lakeside v. Oregon,4 decided in 1978, the Court limited Grift by
deciding that Griffin outlawed only adverse comment on a defendant's
failure to testify. 4 1 In Lakeside, a Carter-type instruction was given over
the defendant's objection. 42 The defendant argued that the giving of
the instruction violated his fifth amendment privilege since it was comment on his failure to testify.4 3 He argued that the instruction unconstitutionally emphasized his silence. The Court responded that the
defendant's argument rested on "two very doubtful assumptions."
It
presupposed that the jury on its own had not noticed the defendant's
silence, and that the jurors totally disregarded the instruction to avoid
giving it evidentiary weight. The Court decided that "[f]ederal constitu'45
tional law cannot rest on speculative assumptions so dubious as these."
Consequently, the Supreme Court held that a no "adverse inference"
instruction, even when given over the defendant's objection, does not
violate the very constitutional privilege which it is meant to protect. 46
This fifth amendment history reveals that when the fifth amendment was adopted, it was not reasonable to infer guilt from a defendant's silence, since a defendant had no opportunity to testify. The
federal and state governments gave a defendant the option to testify
through competency acts, and so made possible speculation on a defendant's refusal to testify. Congress was aware that this speculation could
easily lead to the unconstitutional inference that a defendant remained
38 See generally Comment, Defendant's Failureto Testi in State Cmi'zal Trial, 79 HARV. L.
REV. 159 (1965).
39 380 U.S. at 614.
40 435 U.S. 333 (1978).
41 Id at 338.
42 The no "adverse inference" instruction at issue in Lakeside was the charge to the jury
that
[u]nder the laws of this State a defendant has the option to take the witness stand to
testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance
gives rise to no inference or presumption against the defendant, and this must not be
considered by you in determining the question of guilt or innocence.
Id at 335.
43 Id at 338.
44 Id at 340.
45 Id at 339.
46 Id
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JURY INSTRUCTIONS
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silent because he was guilty. The federal competency act therefore included the provision that a defendant's silence should create no presumption against him. Prior to Mally, the Supreme Court avoided
reaching the fifth amendment issues raised by the federal competency
act. It did so by construing the "no presumption" clause in ways which
brought the federal competency act into conformity with the fifth
amendment. In Wilson, the Court prohibited comment suggesting that
an inference could be made from a defendant's silence to his guilt and,
in Bruno, the Court gave a defendant the right to a jury instruction that
his silence is not evidence of his guilt. When the fifth amendment became applicable to the states, it opened the question of the constitutionality of the state competency acts. In order to meet this question, the
Court abandoned its method of interpreting the federal competency act,
and confronted the fifth amendment question directly. The Supreme
Court, first in GC'jin and then in Carter, held that the fifth amendment
demands the protection given federal defendants in Wilson and Bruno.
III.
CARTER V. KENTUCKY
On December 22, 1978, two men fled from an officer investigating
suspicious circumstances in an alley behind a hardware store in Kentucky. The officer discovered that a hole had been made in the wall of
the store, and found store merchandise outside of the opening. The officer reported the incident to a second officer in the area.4 7 The second
officer saw two men running in the vicinity of the store, and apprehended one of them, the defendant Lonnie Joe Carter. The first officer
identified Carter as wearing clothing similar to one of the two men she
observed, and as being of similar height and weight. The petitioner was
taken to police headquarters and charged with third degree burglary
and with being a persistent felony offender, in violation of Kentucky
48
criminal statutes.
At trial, the judge held a conference to determine whether the petitioner intended to testify.4 9 The judge informed the defendant that if he
testified, the judge would allow the prosecution to introduce the petitioner's prior felony convictions into evidence. The prosecutor wanted
to introduce these convictions to impeach the defendant's propensity to
tell the truth. Upon advise of counsel, the petitioner elected not to testify.5 0 The judge then refused the defendant's standard 51 and timely
47 101 S. Ct. at 1114.
48 Id
49 Id at 1115.
50 Id
51 See, e.g., 7 FED. PRoc. FORMS § 20:957 (1976):
A defendant in a criminal proceeding has the absolute right not to testify. The fact that
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request for a jury instruction that silence is not evidence of guilt. 52 The
jury found the petitioner guilty of burglary, and recommended a two
year sentence. After the recidivist phase at the trial, the jury found
Carter guilty of being a persistent offender, and sentenced him to twenty
53
years in prison.
In an opinion not released for publication, 54 the Kentucky
Supreme Court rejected Carter's argument that the refusal to give the
55
no "adverse inference" jury instruction violated the fifth amendment.
The Kentucky court cited as controlling its opinion in Green v. Commonwealth.56 In Green, the Supreme Court of Kentucky declined to adopt
the Bruno rule that a defendant has a right to an instruction that silence
is not probative of guilt.5 7 The court noted that while the Bruno decision
rests on the federal competency act, the Kentucky competency act contains an additional clause that the defendant's failure to testify "shall
not be commented upon." 58 The court decided that a no "adverse inference" instruction would be "comment" within the meaning of the Kentucky statute, and that therefore such a jury instruction would be
unlawful. The instruction would emphasize a defendant's refusal to testify, according to the court, and so would do violence to "the clear intent of our legislature to fully protect the rights of an accused. ...
The Supreme Court reversed the state court's decision in Carter v.
Kentucky. The Court held that the principles in prior cases lead "unmistakably" to the conclusion that the fifth amendment requires a no "adverse inference" jury instruction when it is requested by a criminal
defendant. 60 Writing for the majority, Justice Stewart first pointed out
that in Bruno the failure to give a Carter-type instruction was found not
to be a mere "technical error.
.
.
which does not affect.
. .
substantial
the defendant did not testify does not create any presumption of guilt, and you are not
permitted to draw any inference against the defendant because he did not testify. Therefore, you are not to discuss or in any way consider that fact.
Id
52 101 S. Ct. at 1116.
53 Id
54 Carter v. Kentucky, No. 79-SC-452-MR, slip op. (Ky. March 13, 1980).
55 Prior to Carter,Kentucky was joined by Minnesota, Nevada, Oklahoma, and Wyoming
in refusing to give a no adverse inference jury instruction upon request. 101 S. Ct. 1114 n.2.
56 Carter v. Kentucky, No. 79-SC-452-MR, slip op. at 6:
In Green a. Commonwealth. . .this court had under consideration a request by an accused
that the court instruct the jury that no inference of guilt should be drawn from his failure
to testify. This question was considered by this court and we concluded that, "[t]he trial
court did not err in refusing to give Green's requested instruction."
Id
57 488 S.W.2d 339, 341 (Ky. 1972).
58 Ky. REV. STAT. § 421.225(1) (1979).
59 488 S.W.2d at 341.
60 101 S. Ct. at 1119.
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rights .... ,,61 Justice Stewart noted that the Bruno Court stated that
the right of an accused to insist upon "the privilege to remain silent is of
a very different order of importance . . .from the 'mere etiquette of
trials and . . .the formalities and minutiae of procedure.' "62 While
Bruno relied on the authority of a federal statute, the Court concluded
that it was plain that the opinion was influenced by the constitutional
guarantee against compulsory self-incrimination. 63 In Carter, the Court
proposed that it could adopt the Bruno reasoning, just as the Gritji
Court adopted the Wilson reasoning. The Court decided that Bruno will
reflect the spirit of the self-incrimination clause when the words "fifth
amendment" are substituted for the word "Congress" in the text of the
Bruno opinion. 64
The Carter Court then stated that Gnftin stands for the proposition
that a defendant must pay no court-imposed penalty for the exercise of
his constitutional privilege not to testify. 65 The penalty was exacted in
Gnffin by comment suggesting that the defendant's silence is evidence of
guilt. The Supreme Court reasoned that the penalty may be just as
severe when the jury arrives at the "silence implies guilt" reasoning on
66
its own.
The Court decided that the significance of a no "adverse inference"
instruction was forcefully acknowledged in Lakeside.67 In Lakeside, according to the majority, the purpose of the instruction was deemed so
important that it outweighed the defendant's preference to have the in68
struction excluded.
The Court next stated that for juries to function effectively, they
must be accurately instructed in the law. 69 Such instructions are critical
when a defendant exercises his privilege against self-incrimination, according to the Court, since too many assume -that those who invoke the
privilege are guilty of crime. 70 The Court stated that it cannot be dog61 Id (quoting 308 U.S. at 293).
62 I01 S. Ct. at 1119 (quoting 308 U.S. at 294).
63 101 S.Ct. at 1119.
64 Id at 1119 n.16.
65 Id at 1119.
66 id
67 Id
68 Id
69 In support of its position that a jury needs guidance in understanding the judicial rules
of evidence, the Court cited a recent national public opinion survey, revealing that 37% of
those interviewed believe it is the responsibility of the accused to prove his innocence. Id at
1120 n.21 (citing 64 A.B.A.J. 653 (1978)).
70 101 S. Ct. at 1120. The Court stated that "[i]t has been almost universally thought that
juries notice a defendant's failure to testify. The jury will of course realize this quite evident
fact, even though the choice goes unmentioned. . . . [It
is] a fact inescapably impressed on
the jury's consciousness." Id at 1120 n.18 (quoting 308 U.S. at 621-22 (Stewart, J., dissenting)). Dean Wigmore commented that:
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matically assumed that the jury will not obey the instruction to ignore
the inference from silence to guilt, since judges have great influence over
71
the jury.
[t]he layman's natural first suggestion would probably be that the claim [to privilege in
each instance] was a clear confession of the criminating fact. . . "Logic is logic"...
and it is on that score impossible to deny that the very claim of the privilege involves a
confession of the fact. "Were you assisting the defendant at the time of the affray?"; this
may be answered "yes" or "no"; if "no," the fact is not criminating and the privilege is
not applicable; if "yes," the fact is criminating and the privilege applies. The inference,
as a mere matter of logic, is not only possible but inherent, and cannot be denied.
8 J. WIGMORE, EVIDENCE § 2272, 409-10 (McNaughton rev. 1940). Justice Frankfurter concluded that "[s]ensible and just-minded men, in important affairs of life, deem it significant
that a man remains silent when confronted with serious and responsible evidence against
himself which it is within his power to contradict." Adamson v. California, 332 U.S. 46, 60
(1947) (Frankfurter, J., concurring). Yet on another occasion, the Supreme Court cautioned
that "[t]oo many, even those who should be better advised, view this privilege as a shelter for
wrongdoers. They too readily assume that those who invoke it are either guilty of crime or
commit perjury in claiming the privilege." Ullman v. United States, 350 U.S. 422, 426
(1956).
The principle that silence is evidence of guilt has been applied by some courts in civil
cases. See, e.g., Smith v. Allen, 297 F.2d 235, 236 (4th Cir. 1961) (quoting Tillman v. Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773 (1946)):
It is well settled that statements made in the presence and hearing of another, to which
he does not reply, are admissible against him as tacit admissions of their truth or accuracy, when such statements are made under circumstances naturally calling for reply if
their truth is not intended to be admitted. This principle rests upon the universal rule of
human conduct which prompts one to repel an unfounded imputation or claim.
297 F.2d at 236.
71 The Court approvingly cites Bruno for the proposition that "we have not yet attained
that certitude about the human mind which would justify us in. . . a dogmatic assumption
that jurors if properly admonished, neither could nor would heed the instructions of the trial
.
01 S. Ct. at 1120 (quoting 308 U.S. at 294). As empirical support for its findcourt .
ing, the Court also cites four studies on jury reaction to court instructions. 101 S. Ct. at 1120
n.20. These studies can be summarized as follows:
(1) Robin Reed, in her article, "Jury Simulation", presents the results of a study conducted with 214 university students. The students were given booklets containing a manuscript of a trial. Four different trials were reproduced, and of each of these four,
approximately half of the booklets contained jury instructions, and half did not. The students
read the trial manuscripts, and arrived at a verdict. In the first reproduced trial, of those
students given trial instructions, 17 voted guilty, 10 not guilty, and 1 undecided. When the
instructions were omitted in the first trial, 21 voted guilty, 4 not guilty, and 4 undecided. In
the second reproduced trial, with instructions, 18 voted guilty, 7 not guilty, and 3 undecided.
Without instructions, 15 voted guilty, 5 not guilty, and 6 undecided. In the third reproduced
trial, with instructions, 11 voted guilty, 15 not guilty, and 1 undecided. Without instructions,
14 voted guilty, 10 not guilty, 3 undecided. In the fourth reproduced trial, with instructions,
6 voted guilty, 18 not guilty, and 1 undecided. Without instructions, 11 voted guilty, 8 not
guilty, and 5 undecided.
As a result of these findings, Reed concluded that "[t]he final variable, judge's instructions, had a significant effect. The result of this presence-absence manipulation may be the
major finding of the experiment. Jurors were affected by judge's instructions. Jurors without
instructions were more likely to vote guilty or cannot decide." Reed, Jug, Simulatiorn The
Impact ofJudge's Instructions and Attorn Tactics on Decision-Making, 71 J. CRIM. L. & C. 68, 71
(1980).
(2) Diane Bridgeman and David Marlowe reported on the results of interviewing 65
jurors upon the completion of 10 felony trials in Santa Cruz County, California. The jurors
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The Court's reasoning in Carter can be summarized as follows:
(1) there is a strong possibility that a jury will notice a defendant's failure to testify, and will draw an inference of guilt from his silence; (2) this
inference from silence to guilt imposes a penalty on a defendant for exercising his fifth amendment right; (3) Gnffn held that such penalties violate the fifth amendment; (4) an instruction will lessen the possibility
that jurors will give evidentiary weight to a defendant's silence; therefore, (5) the fifth amendment guarantees the right to a jury instruction,
at least when a criminal defendant requests it.
The Court proceeded to dismiss a number of Kentucky's arguments
were asked to rank in order of importance the factors that influenced their verdicts. Eighteen
of the 65 ranked the defendant's testimony as the first or second most important factor in
arriving at their verdict, 24 of the 65 so ranked other witness testimony, and 29 of the 65 so
ranked police testimony. Eighty-two percent of the jurors reported that they either completely or mostly understood the judge's instructions to the jury. Twelve percent believed
that jurors should be allowed to ask questions of the judge or attorneys, and 14 percent
wanted more opportunity to talk with the judge regarding the final instructions they had
received. Ten of the 65 ranked the judge as the first or second most important factor in
arriving at their verdict. Bridgeman & Marlowe, JuV Decision Making: An Empirical Study
Based on Actual Felony Trials, 64 J. APPLIED PSYCH. 91 (1979).
(3) Robert Forston conducted a study to measure jury understanding of court instructions. Thirty-nine university students listened to a set of judge's instructions, and then were
tested on their understanding of these instructions. The students averaged a 59.8% accuracy
on the examination. They were then divided into groups of approximately six each, and took
the test again as a group effort. In this simulation of a deliberating jury, the panels averaged
an accuracy rate of 82.9%. Forston concluded that juries understand more of the judge's
instructions than previously thought, and that jurors do not act separately in applying rules
of law, but function as a group. He was concerned by the result, however, that 85.7% of the
jury panels were unable to correctly respond to the question of what constitutes proof of guilt.
Forstonjudges Instructions: A QuantitiativeAnalysis ofJurors'ListeningComprehension, 18 TODAY's
SPEECH 34 (1970).
(4) W.R. Cornish and Dr. A.P. Saly conducted a study on the reaction ofjuries to the
laws of evidence. Groups ofjurors listened to a tape recording of a mock trial and reached a
verdict based upon what they had heard. The jurors were divided into three groups. The
first group was unaware that the mock defendant had a previous record for an offense similar
to the one with which he was charged in the mock trial. Twenty-seven percent of the 92
participants arrived at a guilty verdict. The second group listened to an identical trial, but
were made aware of the mock defendant's previous conviction for a similar offense. Fiftyseven percent of the 90 participants adjudged the defendant guilty. The third group was
made aware of the defendant's prior conviction for a similar offense, but was instructed by the
judge to ignore this evidence. Thirty-five percent of this group of 69 found the defendant
guilty.
Cornish and Sealy concluded that the admission of previous convictions does increase the
chance of a guilty verdidt, but that, contrary to common supposition, juries give real weight
to an instruction to disregard relevant previous records wrongly admitted. Cornish & Scaly,
Juries and the Rules of Evidence, 1973 CRIM. L. REv. 208.
Of the articles cited by the Court, this study is the most persuasive justification for the
assumption that juries will heed a judge's instructions to avoid giving evidentiary weight to a
defendant's silence. Some of the participants in this study, while presumably not forgetting
the defendant's record, managed to put it out of consideration in arriving at a verdict. If it is
possible to do so with a previous record, arguably it is possible to do so with respect to a
defendant's silence.
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against reversal of the defendant's conviction.7 2 Kentucky argued first
that it has a legitimate state interest justifying its refusal to issue the no
"adverse inference" instruction. Kentucky reasoned that the instruction
would have been comment by the court, and would have unconstitutionally violated the defendant's fifth amendment right by emphasizing
his failure to take the stand. The Court decided that this state interest is
unjustified, citing Lakeside for the proposition that "[i]t would be strange
indeed to conclude that this cautionary instruction violates the very con'73
stitutional provision it is intended to protect.
The Supreme Court also found unpersuasive Kentucky's argument
that the jurors knew not to make adverse inferences from a defendant's
silence. 74 Kentucky pointed out that the jury was instructed to determine guilt from the evidence alone. Since the failure to testify is not
evidence, Kentucky argued that the jury knew not to consider the defendant's silence. The Court responded that the jury has no legal background, and cannot be expected to know the technical rules of evidence.
Without limiting instructions, jurors can be expected to give evidentiary
75
weight to a defendant's silence.
The Supreme Court also decided that an instruction that "[t]he law
presumes a defendant to be innocent" is not a constitutionally accepta76
ble substitute for the requested no "adverse inference" instruction.
The majority noted that although the fifth amendment and the presumption of innocence are closely related, the principles serve different
functions. Citing Taylorv. Kentucky, 77 the Court concluded that the jury
would have derived significant additional guidance from the requested
instruction. The majority relied on Taylor once more as support for its
decision that the arguments of counsel did not substitute for the re72 101 S. Ct. at 1121.
73 Id (quoting 435 U.S. at 339).
74 101 S. Ct. at 1121.
75 Id
76 Id
77 Id (citing 436 U.S. 478,483). In Taylor, under the facts of the case, the Court held that
the defendant had a right under the due process clause to a jury instruction on the presump-
tion of innocence. Kentucky unsuccessfully argued in Taylor that an instruction on the presumption of innocence is not required where the jury is instructed as to the government's
burden of proof. 436 U.S. at 483.
The Carter Court also referred to United States v. Bain, 596 F.2d 120 (5th Cir. 1979) and
United States v. English, 409 F.2d 200 (3d Cir. 1969) in support of its assertion that additional jury instructions are sometimes essential. 101 S.Ct. at 1121. Under the authority of
the federal competency act, English and Bain held, respectively, that an instruction on the
presumption of innocence and an instruction on the burden of proof were no substitute for
the requested no "adverse inference" instruction.
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quested instruction. 78
Kentucky concluded by arguing that since the evidence against
Carter was overwhelming, the trial court's error in refusing to issue the
instruction was harmless. 79 On the authority of Sandstrom v. Montana,80
the Supreme Court refused to consider the harmless error issue because
that issue was not considered by the Kentucky Supreme Court.8' The
Court suggested in dictum, however, that the refusal to give a no "ad82
verse inference" jury instruction may never be harmless error.
With great reluctance, Justice Powell concurred in the Carter holding: "I write briefly to make clear that, for me, this result is required by
precedent, not by what I think the Constitution should require."' 83 Attacking the theory underlying both G'ftn and Carter, Justice Powell em78 101 S. Ct. at 1121 (citing 436 U.S. at 489). The defense counsel argued that Carter
"doesn't have to take the stand. . . [H]e doesn't have to do anything." Id
The Court's repeated reliance on Taylor is misleading since the Talor holding was severely qualified in Kentucky v. Whorton, 441 U.S. 787 (1979). In Whorlon, the Court decided
that Taylor did not stand for the proposition that an instruction on the presumption of innocence is required in every case. Id at 788. Rather, the Court held that the failure to give an
instruction on the presumption of innocence must be evaluated in light of the totality of the
circumstances. Id at 789. The Court noted that the factors that are to be considered include
(a) all of the instructions to the jury; (b) the arguments of counsel; and, (c) whether the weight
of the evidence was overwhelming-in short, all of the factors that the Supreme Court dismissed in Carter. Id This apparent discrepancy can be explained perhaps by the Court's
assertion in Carterthat the right to an instruction on the fifth amendment privilege is "more
compelling" than the right to an instruction on the presumption of innocence. 101 S.Ct. at
1120 n.19. "[T]he omission [in Taylor's trial] did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination." Id (quoting Taylor v. Kentucky, 436 U.S. at 492 (Stevens, J., dissenting)).
79 101 S.Ct. at 1121. Kentucky cited Chapman v. California, 386 U.S. 18 (1967), as
authority for the harmless error argument. In Chapman, the Supreme Court decided that
"there may be some constitutional errors which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal Constitution, be
deemed harmless, not requiring the automatic reversal of the conviction." 386 U.S. at 22.
This "harmless-constitutional-error-rule" was not applied in Cha/pman, however, where the
judge unconstitutionally charged the jury that it could draw adverse inferences from the defendant's silence. 386 U.S. at 18.
80 442 U.S. 510 (1979).
81 101 S.Ct. at 1121. "As none of these issues was considered by the Supreme Court of
Montana, we decline to reach them as An initial matter here." Sandstrom v. Montana, 442
U.S. 510, 527 (1979). See also Moore v. Illinois, 434 U.S. 220, 232 (1977); Coleman v. Alabama, 399 U.S. 1, 11 (1970).
82 101 S.Ct. at 1121. The Court cited Bruno for the argumcnt that the refusal to give the
instruction is never harmless error. Id Presumably, the passage referred to is the following:
Is the disregard of the [statutory] right. . .[to a no "adverse inference" instruction] an
error, the commission of which we may disregard? We hold not. . .. The Act...
whereby appellate courts are under [a] duty in criminal as well as in civil cases to disre... was intended to prevent matters
gard 'technical errors, defects, or exceptions ......
concerned with the mere etiquette of trials. . . .Of a very different order of importance
is the right of an accused to insist on a privilege which Congress has given him.
308 U.S. at 293-94.
83 101 S.Ct. at 1122 (Powell, J., concurring).
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phasized that the fifth amendment forbids compulsion, and that the
focus of the inquiry, therefore, should be upon whether the defendant
actually has been compelled. He pointed out that the defendants in
Gnfti and Carter could not claim that they were compelled to take the
84
witness stand, since each chose not to do so.
Apart from the wording of the amendment, Justice Powell attacked
the two decisions on policy grounds. He argued that a defendant usually knows the most about the facts of a case, and that a logical inference
does and should follow from his failure to testify. Justice Powell nevertheless concluded that since Griftf is now the law, principles of stare
85
decisis bound him to join in the majority's holding.
Justice Stevens, joined by Justice Brennan, concurred in the Court's
opinion, and wrote separately only to emphasize that the Carter holding
is limited to cases in which the defendant requests the jury instruction.8 6
He reiterated his position in Lakeside that the question of whether an
instruction should issue is a question to be answered by the defendant
and his counsel.8 7 Justice Stevens argued that since a defendant has the
right to decide the larger question of whether to take the stand, he logically ought to have the right to decide the lesser companion question of
whether an instruction should issue.88
Justice Rehnquist, in the only dissenting opinion, attacked the
Court's "singular paucity of reasoning" in relying on Bruno as support
for the Carter holding.89 He argued that Bruno was decided under the
federal competency act and that this act, since it is not binding on the
states, is of no relevance whatsoever to the Court's decision. In agreement with Justice Powell, Justice Rehnquist asserted that this case lacks
the compulsion necessary to establish a fifth amendment violation. 90 He
was also concerned with the implications of the holding for the federalstate balance of constitutional power. Justice Rehnquist at least hinted
that the fifth amendment, with its accompanying constitutional doctrine, should never have been made applicable to the states: "Until the
mysterious process of transmogrification by which this amendment was
held to be 'incorporated' and made applicable to the States . . .the
provision itself would not have regulated the conduct of criminal trials
in Kentucky." 9 1 Justice Rehnquist claimed that Carter exceeds even
GnjFn by giving a defendant, as a matter of right, the power to take
84 Id
85 Id
86 Id at 1123 (Stevens, J., concurring).
87 435 U.S. at 344 (Stevens, J., dissenting).
88 101 S. Ct. at 1123 (Stevens, J., concurring).
89 Id (Rehnquist, J., dissenting).
90 Id
91 Id
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control over state jury instructions. 92
IV.
CRITIQUE OF CARTER V. KENTUCKY
The Supreme Court in Carterv. Kentucky reached the correct result.
However, the Court's reasoning in justification of the Carter holding is at
some points misleading and, at other points, inadequate.
The Supreme Court discussed three cases at length in support of its
decision. Although the holding is made to appear to rest on Bruno, GCn)
AIn, and Lakeside, only CnVf provides substantial support for the Court's
reasoning. The majority stated that it is plain that the Bruno opinion,
establishing a statutory right to a Carter-typeinstruction, was influenced
by the fifth amendment. 93 While this may be true, the Court offered no
convincing reasoning for its assertion. The Court suggested that the
Bruno opinion would reflect the spirit of the privilege against self-incrimination if the word "Congress" in Bruno were replaced with the words
"fifth amendment. ' 94 It is a conclusion, not reasoning, however, to assert that by means of a word change, a statutory opinion becomes a
constitutional holding.
The Court may have relied on the fact that Bruno characterized the
right to a Carter-type instruction as "substantial". 9 The Bruno Court
did not, however, characterize the right as "constitutional." The leap
from a substantial statutory right to a constitutional fifth amendment
right requires justification, and the Bruno opinion does not provide it.
The Court could have decided that the fifth amendment demands that
no presumption is to be raised against a defendant exercising his right to
remain silent. If it had done so, then the Bruno reasoning, based on the
"no presumption" clause, would have automatically applied to the fifth
amendment decision in Carter. Since the Carter Court did not choose this
alternative, however, Bruno provides no real support for the Court's
reasoning.
The Lakeside decision is no more helpful to the Carter Court's analysis. The Carter Court stated that Lakeside established the significance of
a Carter-typeinstruction. 9 6 The Lakeside opinion did so, according to the
majority, by deciding that the purpose of the instruction was so important that it outweighed the defendant's choice of tactics to suppress the
instruction. 9 7 It is difficult to reconcile this summation of Lakeside with
the Court's caution in Lakeside that:
92
93
94
95
96
Id at 1124.
id at 1119.
Id at 1119 n.16.
308 U.S. at 293.
101 S. Ct. at 1119.
97 .1d
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[i]t may be wise for a trial judge not to give such a cautionary instruction
over a defendant's objection. And each State is, of course, free to forbid its
trial judges from doing so as a matter of state law. We hold only that the
giving of such an instruction over the defendant's objection does not vio98
late the privilege against compulsory self-incrimination ....
If this is all that the Lakeside Court held, then Lakeside did not "acknowledge the significance" of a no "adverse inference" instruction. -Lakeside
simply held that the instruction does not violate the constitution. The
majority's reasoning is fallacious since Lakeside's holding that a Cartertype instruction does not violate the constitution does not logically lead
to the conclusion that the constitution commands such an instruction.
Of the three opinions discussed at length by the Court, then, only
Grtff/n can justify the Carter Court's position. The Grtffi Court asserted
that the fifth amendment is violated when a defendant suffers a penalty
for exercising his right to remain silent. 99 Comment that silence is evidence of guilt is an unconstitutional penalty, since it increases the risk
that a silent defendant will be convicted because of his silence. A defendant exercising his fifth amendment right is equally penalized, however, if the jury, without suggestive comment, infers guilt from the
accused's silence.' 0 0 Since there is a strong possibility that a jury will
arrive at such reasoning independently, a Carter instruction, if requested,
is constitutionally mandated in the hope that it will offset the unconstitutional inference. The Carter opinion follows logically from the Ghftfi
decision, and given crtfj,
the Carter holding cannot seriously be
questioned.
Two of the justices, however, attacked the majority opinion by disagreeing completely with Gr.ffm and, a fortiori, with Carter. Justice Powell and Justice Rehnquist posed a strong argument against the Gqffm
and Carter rationales, which the majority simply neglected to address.
The two Justices argued that since the defendants in 6-rt and Carter
chose not to take the stand, they were not compelled to testify against
themselves. 101 They reasoned that the fifth amendment only prohibits
compulsion and that where, as here, there is no compulsion, there can be
no fifth amendment violation. It is puzzling that the Court did not address this argument, particularly in view of its decision, on another occasion, that "a necessary element of compulsory self-incrimination is some
2
kind of compulsion.""1
U.S. at 340.
99 380 U.S. 609.
98 435
100 101 S. Ct. at 1119.
101 Id at 1122-23.
102 Hoffa v. United States, 385 U.S. 293, 303 (1966). Justice Stewart, who wrote for the
majority in Carter, had proposed an argument similar to one made fifteen years earlier in his
6Vft dissent. 380 U.S. at 620 (Stewart, J., dissenting). See text accompanying note 37 supra.
1981]
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Justice Powell and Justice Rehnquist assumed that a defendant can
be a witness against himself only by taking the stand and testifying.
They overlooked the possibility that a defendant can be a witness
against himself through his silence. If a jury reasons from a defendant's
silence to his guilt, a defendant is, in effect, giving evidence of his guilt
when he refuses to take the stand. In a real sense, then, through his
silence, a defendant becomes a witness against himself. If a defendant's
options are limited to not taking the stand, and being a witness against
himself, on the one hand, or taking the stand, and being a witness
against himself, on the other, then a defendant is compelled to be a
witness against himself. He has no choice. As Wigmore stated, "the
supposed option lies between answering in confession of the criminating
fact or keeping silence and letting the same fact be inferred; which is no
option at all." 10 3 It is the adverse inference from a defendant's silence to
his guilt which unconstitutionally compels a defendant to be a witness
against himself. If an instruction can help to remove this inference from
the jury's consideration, then the instruction is constitutionally required,
at least when requested.
The Supreme Court appeared to recognize the possibility, however,
that some jurors may not infer a defendant's guilt from his silence. If
they do not, an instruction would introduce the unconstitutional inference for the first time. It is possible that after the instruction presents
the reasoning, the jury will be unwilling or unable to obey the instruction to disregard the silence. It is at least possible, then, that the jury
instruction will foster the very unconstitutional inference it was meant
to prevent. 0 4 Out of deference to this possibility, the Court repeatedly
limited the Carter holding to those cases in which the defendant requests
the instruction.10 5
It appears, then, that the Carter Court did not completely discount Kentucky's argument that the instruction may unconstitutionally emphasize a defendant's silence. Indeed, in Lakeside, the Court
noted in dicta that "[i]t may be wise for a trial judge not to give such a
cautionary instruction .. .. ,106 The Court decided, however, that it is
the defendant's gamble, and he has the right to the instruction upon
request.
It is difficult to reconcile Car/er with Lakeside on this point. If a
defendant has the right to decide that the instruction should issue, it
appears that he should also have the correlative right to decide that the
103 8 J. WIGMORE, EVIDENCE § 2272, 425 (McNaughton rev. 1940).
104 This argument is similar to that made by Kentucky in Carter. See notes 57-59 & accom-
panying text supra.
105 101 S. Ct. at 1112.
106 Lakeside v. Oregon, 435 U.S. at 340.
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instruction should not issue. Lakeside held, however, that the fifth
amendment does not command that the defendant be accorded this lat10 7
ter right.
Lakeside may have been decided with a view towards the eventual
resolution of the Carter issue, and its possible effects on multiple defendant trials. If a trial has four defendants, and three of the defendants
request a no "adverse inference" jury instruction, while one requests
that it not be given, under Carter and Lakeside, the instruction will be
given. 10 8 If Lakeside had been decided the other way, however, the
fourth defendant would have had a fifth amendment right to prevent
the giving of the instruction. Courts trying multiple defendants would
be faced with the dilemma of violating the fifth amendment whether
they gave the instruction or not. To avoid the problem of calling into
question the constitutionality of multiple defendant trials, the Supreme
Court may have decided that only one of the two positions could be
given constitutional protection. The Court decided that it is more likely
that the jury will arrive at the adverse inference on their own, and that
an instruction to ignore the reasoning would probably not harm fifth
amendment rights, and may serve to protect them.
V.
CONCLUSION
Not only precedent, but the wording of the fifth amendment itself,
demands the result arrived at in Carterv. Kentucky. Carter did not enlarge
the scope of the fifth amendment, but attempted to restore that privilege
to its strength at the time of its adoption into the Bill of Rights. At
common law, a jury could not reasonably infer guilt from a defendant's
silence. The competency acts first made possible this unconstitutional
inference, and so first raised the fifth amendment question at issue in
Carter. If a jury reasons from silence to guilt, then a defendant is compelled to be a witness, within the meaning of the fifth amendment. He
is compelled in a way that he was not compelled at common law.
Therefore, to restore some of the original force of the fifth amendment,
the Supreme Court correctly decided that a jury instruction is constitutionally mandated, when requested, to reduce the effect of an adverse
inference from a defendant's silence.
It is nevertheless possible that, despite a Carter instruction, a jury
will allow the "silence implies guilt" reasoning to affect its verdict. This
possible infringement of fifth amendment rights is inextricably entwined
with the competency acts. Some infringement is justified, however,
since the government has a substantial interest in allowing defendants
Id at 342.
108 See, e.g., United States v. Williams, 521 F.2d 950 (D.C. Cir. 1975).
107
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who want to take the stand to do so. Although a state has a substantial
interest in legislation making defendants competent witnesses, such legislation must be narrowly drawn so as not to infringe unnecessarily on
fifth amendment rights. Carter limited competency acts to their constitutionally permissible bounds by eliminating, as much as judicially possible, the inference that silence is equated with guilt.
A number of people will be uncomfortable with the Carter decision
because they are uncomfortable with the fifth amendment generally.
Prominent authors have posed weighty arguments in favor of abandoning the privilege against compulsory self-incrimination. 10 9 But "[i]f
it be thought that the [fifth amendment] privilege is outmoded in the
conditions of this modem age, then the thing to do is to take it out of the
Constitution, not to whittle it down by the subtle encroachments ofjudicial opinion."' 1 10 As long as the fifth amendment is in the constitution,
defendants have the right to the protection they receive through the
Supreme Court's decision in Carter v. Kentucky.
SHARON
R.
GROMER
109 See, e.g., Pound, LegalInterrogationofPersonAccusedor Suspectedof rtime, 24J. GRIM. L.C.
& P.S. 1014 (1934); Wigmore,Nemo Tenelur eipsumProdere,5HARV. L REV. 71, 75-88 (1891).
110 Ullman v. United States, 350 U.S. 422, 427 (1956) (quoting Maffie v. United States,
209 F.2d 225, 227 (1st Cir. 1954)).